West

*894 Opinion

Defendant, a civilian employee of the Yuba County jail, was convicted of forcible sodomy (Pen. Code, § 286, subd. (c) 2 (count I), sexual battery (§ 243.4) (count II), and sodomy committed while confined in a county jail (§ 286, subd. (e)) (count VII). 3 All crimes were committed against D.H., an inmate at the jail. (D.H. is hereinafter referred to by his initials or as the victim.) The jury acquitted defendant on a fourth count, sodomy by threat of authority (§ 286, subd. (k)) (count III).

Defendant was sentenced to the lower terms of three years on count I, two years on count II and 16 months on counts III with sentences on counts II and III stayed pursuant to section 654. On appeal, defendant contends: (1) the court erred in admitting evidence of other crimes, (2) there is insufficient evidence to support the conviction for forcible sodomy, and (3) prosecutorial misconduct compels reversal. On our own motion, we requested supplemental briefing on the question of whether, as a matter of law, defendant by reason of his status as a nonprisoner could be convicted in count VII of violating section 286, subdivision (e). We shall reverse the judgment as to counts II and…